Honor, murder and "the law".
In "The Whole News" forum, Featherock made a post that has actually been eating away at my thoughts. With the kind permission of the Council, I'd like to explore some of the concepts that are presented in this post. My thinking on this issue is somewhat all over the map, and I figured if someone would shoot holes at it for awhile, I could clarify some of the issues. So, here goes:
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There's no "thinking" about it. The facts are the facts. What he did was against the law, pure and simple. An honor code is just that, a code, a highly subjective set of rules of conduct that different cultures define differently. An honor code is not the same thing as the rule of law as codified in instruments like the Geneva Conventions. For instance, a Marine wouldn't be tried in court for leaving behind a squad member, even though doing so would break a deeply held honor code among Marines (and other service branches, obviously).
While the law is subjective -- otherwise, why would we need lawyers (some would argue, rightly in a lot of cases, that lawyers do more to obfuscate and frustrate the law than they do interpreting it, the DOJ under Bush being a great example, e.g, Gitmo) -- the fact is all soldiers and contractors operating in a combat zone have to operate under the law, regardless of what the enemy does.
Does it hurt our COIN efforts? I would say yes. This specific incident? I don't know. This incident paired with other incidents like it (PMCs firing on civilians in Iraq, the Gitmo disaster) have a incredibly deleterious effect on COIN efforts and America's standing in the world.
This post was in response to a post where I suggested that under some cultures, "honor" specifies that one breaks the law, and then presents themselves for punishment. Probably the most noteworthy example is a culture like the pre-modern Japanese culture, which celebrated the concept of "on" (I hope I'm getting that right) where warriors were expected to avenge perceived honor violations and then commit suicide or present themselves for punishment. (As an aside, to be denied the right to suicide or punishment was perceived as "unbearable" and "disgraceful" under that code).
Similar, but more western is the mythical "cowboy code", (under which I believe I was raised, obtw) which possessed an sense of honor, but did not have a suicide component and only sometimes had a punishment component. In other words, anonymous vengeance was sometimes seen as acceptable, and even preferable to public vengeance.
Finally, one can consider honor and the concept of honor in areas like the Middle East or in Africa, where honor killings and tribal/familial vengeance are portrayed as being part of the culture.
If you consider the equity of outcomes, I am finding it more and more difficult to push western "law" as being superior to "honor". After all, under Western law more often than not, the one with the most cash wins. Also, the one with the best I/O campaign in the press often appears to win.
Even with the consideration that law is just, in reality law is just the potential cost of an activity. Just because murder is against the law, it doesn't mean you cannot do it. It just means that if you wish to murder, it costs XX years in prison. It is futile to argue "law" with someone who has deemed the cost of whatever activity as an acceptable cost. For someone who values honor more than anything else, a tribal code is not subordinate to law.
Nearly every poster on multiple forums where I read, have asserted that Mr. Ayala, the PMC accused of murdering the apprehended fire-attacker must have been operating under a certain level of "rage" to have shot an allegedly restrained attacker, if initial reports are true. I would suggest that perhaps that it is also possible that Mr. Ayala may have actually thought his actions through. There IS precedent for individuals deciding that the consequences for an action were worth the "crime".
My "honor brain" tells me that an individual who determines they've failed in their core mission to the extent that someone else was maimed or killed, the concept of vengeance and then punishment would be cathartic, and relieve some of the guilt involved with the initial failure.
On the topic of International law, while it is often advantageous to appear to be adherent to that mythology, in truth, Nations still "do what they can, and suffer what they must", and international law is still a bad joke. Especially with the rise of the non-nation actor and apologists for non-nation criminals, such as the Somali pirates. Except for the occasional dead pirate, the Somali pirates will never pay any legal cost for committing piracy. In this way, they expose the laughable nature of "international law".
Darn, just when I thought ....
the 600 lb. gorilla would start tossing around the young chimps, you tell me this
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120mm
I'm buying the drinks afterwords, and we promise not to break any chairs or tables
slap
jmm99 no brawls here, just good discussion
:)
What I've been doing (thus the lurking and listening mode) is slogging through MAJ Krepinevich's 300 page appellant's brief on Vietnam, with asides to Stanton, Palmer and Garland.
Since I won't get to watch a bar brawl here, I suppose I must contribute something, even though Law and Society isn't one of my fields.
Here's a start at the top:
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120mm
An honor code is just that, a code, a highly subjective set of rules of conduct that different cultures define differently. An honor code is not the same thing as the rule of law as codified in instruments like the Geneva Conventions. For instance, a Marine wouldn't be tried in court for leaving behind a squad member, even though doing so would break a deeply held honor code among Marines (and other service branches, obviously).
Seems "highly subjective" is a term that has to be tied down. To me, a "subjective" approach is what the individual sees as an appropriate course of conduct for that individual. That, BTW, varies with personality types, etc. (another thread on that). If "highly subjective" means "highly individualistic", then each person will have his or her own set of rules determining conduct. That would be the "final solution" to the crime problem since there would be no criminals.
Seems we might also consider "objective" vs. "subjective". I'll try an example of an "objective" standard. We have the "reasonable man" standard (in PC, I suppose the "reasonable person" standard). Now, that happens to be a flexible standard (hence, for those who like rigidity, it is not a standard at all) - What is a "reasonable man" ? And, if you happen to take Torts 101, you will spend more than a few weeks trying to get a handle on that - if ever.
Yet, juries every day apply that standard to decide whether the defendant was negligent or not:
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M Civ JI 10.02 Negligence of Adult—Definition
Negligence is the failure to use ordinary care. Ordinary care means the care a reasonably careful *person would use. Therefore, by “negligence,” I mean the failure to do something that a reasonably careful *person would do, or the doing of something that a reasonably careful *person would not do, under the circumstances that you find existed in this case.
The law does not say what a reasonably careful *person using ordinary care would or would not do under such circumstances. That is for you to decide.
Now, is this a "subjective" or "objective" standard ? It definitely is not "individualistic" because, not only is the defendant's personal standard of care irrelevant, each juror's personal standard of care is equally irrelevant - except as it becomes a factor in the jury's group consensus of what a "reasonably careful person" would or would not do.
So, at least we have gotten to the point where an "objective" standard has to be a group consensus - in a jury trial, 6 or 12 people whose group consensus in a particular case is affected by their life experiences which include input from thousands of people.
Having got that far, what is that "law" that "does not say" a damned useful thing in MCJI 10.02. Damned if I know. Perhaps, it is a brooding omnipresence in the sky. For my purposes, starting with a brooding omnipresence is not very useful.
In short, I do Jomini, not CvC (probably a bad metaphor - let's say that checklists like MOOSEMUSS, METT-TC and SMELC are more similar to how I approach "law"). The bottom line for me, is that the "law" in any particular case is what the judge or jury explicitly or implicitly says it is.
Trying to collect some of this mess together (leaving out "subjective" and "objective"), I suggest that:
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... a law is a code, a set of rules of conduct that different cultures define differently.
So, to me, the Marine Honor Code is just as much a law as the Geneva Conventions. I also suspect that the Marine Honor Code is enforced with more regularity and probably with more consistency than the GCs (which, if you've been reading me, were something of a mess to begin with and are more so with the increased presence of non-state actors as "Powers" in armed conflicts).
All laws (no matter how defined) are "enforceable" in some way - otherwise, they are not laws. A question is whether they are "enforced". E.g., a lot of ink has been spilled on the 1994 & 1996 Anti-Torture Act and War Crimes Act. When I last read, there has been one prosecution and conviction under the first and none under the second.
I have no idea how many Federal laws there are (statutes, regulations, orders, etc.) - maybe a million or so - and seemingly rising along with the national debt. Most we don't hear about because they are not enforced, or do not need to be enforced.
Finally, I think I can get back to the issue I think 120mm raised - what happens when one law collides with another law. Say, the Marine Honor Code and the UCMJ, as in the Tom Cruise movie, A Few Good Men, where from a trial lawyer's standpoint they got the military judge right and not much else. Anyway, it does present the outcome of collisions between laws, where there is also a collision of various ideologies - as presented by the Hollywood types who wrote the script.
As I said, Law and Society is not one of my favs - so, I won't be insulted if someone says that the preceding is a load of bullroar. In any event, I'll get back to slogging Krepinevich, etc., tonite.
In my non-idealistic world,
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I guess in my highly idealistic world, the honorable person breaks the law and then uncomplainingly accepts punishment, therefore satisfying both "honor" and "the law."
only if the game warden catches me with the illegal goose (or two).
And that, after consideration of why we have game limit laws. But, when you have three guys pounding away at an incoming gaggle, you can get more than the 3-person limit. My daddy taught me that leaving game in the field to rot was (and is) a sin.
Thus, the McCarthy exception to the DNR regulations. Sorry, 120mm & Slap, to admit that I break the law - and don't step up to accept punishment. Course, I didn't give the date and place - so, the confession is quite useless (at least in Michigan). Beyond that I plead the Fifth (after taking a shot).